Napier and another v Pressdram Ltd [2009] EWCA Civ 443, [2009] All ER (D) 31 (Jun)
Court of Appeal, Civil Division, Hughes, Toulson and Sullivan LJJ, 19 May 2009
There is no confidentiality concerning the outcome of complaints to the Law Society arising from the process of such complaints; for a duty of confidentiality to arise, the information in question has to be of a nature and obtained in circumstances such that any reasonable person in the position of the recipient ought to recognise that it should be treated as confidential.
James Price QC (instructed by Carter-Ruck) for the claimants, Heather Rogers QC and Anthony Hudson (instructed by Davenport Lyons) for the defendant.
The first and second claimants were a solicitor and a solicitors’ firm respectively. They wished to obtain an injunction preventing the defendant’s magazine “Private Eye” from publishing information about (i) the outcome of a complaint made to the Law Society against the claimants by a former client and (ii) an ombudsman’s report regarding the Law Society’s handling of the complaint. The client (the complainant) had alleged that the first claimant should have declined to act for him because of a potential conflict of interest.
The Law Society had found in the complainant’s favour and issued a reprimand to the first claimant. The complainant passed that information to the magazine. The claimants applied for an interim restraint order on the basis of breach of confidence, pursuant to s 12(3) of the Human Rights Act 1998. The issue arose as to whether the complainant owed a duty to treat the outcome of the Law Society’s investigation as confidential between himself, the claimants and the Law Society.
The judge held, inter alia, that there was no duty of confidentiality owed to the claimants by either the complainant or the publishers of Private Eye, and therefore the claimants had not satisfied the test for an interim restraint order provided by s 12(3), as interpreted by the House of Lords in Cream Holdings Limited v Banerjee [2004] UKHL 44, [2004] 4 All ER 617. He therefore dismissed the application and the claimants appealed.
Toulson LJ:
For a duty of confidentiality to be owed (other than under a contract or statute), the information in question had to be of a nature and obtained in circumstances such that any reasonable person in the position of the recipient ought to recognise that it should be treated as confidential. As Cross J observed in Printers and Finishers Ltd v Holloway [1964] 3 All ER 54n, the law would defeat its own object if it sought to enforce standards which would be rejected by the ordinary person.
Freedom to report the truth was a precious thing both for the liberty of the individual (the libertarian principle) and for the sake of wider society (the democratic principle), and it would be unduly eroded if the law of confidentiality were to prevent a person from reporting facts which a reasonable person in his position would not perceive to be confidential.
It was important to be clear about the nature of the information with which the appeal was concerned. It was possible to envisage cases where a solicitor might disclose information of an intrinsically private nature (for example, relating to his health) in response to a complaint made to the Law Society by a client, and to which reference might be mentioned in the adjudication. But the instant case was not such a case and it was not necessary to consider the issues which might arise in such a case.
The subject matter underlying the adjudication was nothing private to the solicitor. The subject matter was the conduct of the solicitor in relation to the complainant, about which the complainant was free (subject to the law of defamation) to broadcast his grounds of complaint as widely as he wished. He was similarly free to broadcast the fact that he had complained about the solicitor to the Law Society. The critical issue was whether he was entitled also to reveal to others the fact that the Law Society found in his favour on part of his complaint and issued a reprimand to the solicitor.
The solicitor had to show why any reasonable person in the position of the complainant ought to have regarded that fact as something which he was bound to treat as confidential. The solicitor argued that the duty of confidentiality arose because of the nature of the process rather than because of the nature of the underlying subject matter or the nature of anything disclosed in the course of the Law Society investigation.
It was possible for parties to agree on a method of settling differences, or attempting to settle differences, which was to be treated as confidential by all concerned. A classic example was arbitration. The important point was that the duty of confidentiality in that area arose by the parties’ choice. There was no analogy between that type of contractual arrangement and the present case.
In relation to the present scheme it had been the practice of the Law Society not to publish its adjudication, but that seemed to have been its policy choice rather than because of any appreciation that it owed a legal duty not to do so.
More fundamentally, it could not be said that the complainant subscribed to a duty to treat the panel adjudication as confidential by his conduct in invoking the Law Society’s extra-statutory scheme for investigating complaints against solicitors; and there was no other basis on which any reasonable person in his position would have regarded himself as being under such a duty.
In investigating the complaint, the Law Society was performing a public function. There was no basis on which it could have imposed on the complainant, involuntarily, a duty not to disclose the outcome of the investigation, even if it had wished to do so.
Sullivan and Hughes LJJ agreed.
